Citation Nr: 9814634
Decision Date: 05/11/98 Archive Date: 05/27/98
DOCKET NO. 96-29 753 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUES
1. Entitlement to service connection for a left shoulder and
arm disorder.
2. Entitlement to service connection for a neck disorder.
3. Entitlement to service connection for a left elbow
disorder.
4. Entitlement to service connection for a chest and back
disorder.
5. Entitlement to service connection for a left ear
disorder.
6. Entitlement to service connection for tinnitus.
7. Entitlement to an increase in the 50 percent evaluation
currently assigned for organic brain disease, secondary to
head trauma with headaches and dizziness.
8. Entitlement to a total disability rating for compensation
purposes based on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from September 1966 to October
1968.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from rating decisions in August 1994 and
April 1996. The August 1994 rating action denied service
connection for a left shoulder, left arm, neck, left elbow,
left ear, upper left chest, and back disability, and granted
service connection for headaches and dizziness, and assigned
a noncompensable rating, effective from November 19, 1993.
The April 1996 rating decision denied service connection for
tinnitus and a total disability rating for compensation
purposes based on individual unemployability, and granted an
increased rating to 10 percent for the service-connected head
injury with dizziness, effective from November 19, 1993. A
personal hearing before the RO was conducted in September
1996. At that time, the veteran raised the additional issue
of service connection for a nervous disorder secondary to the
service-connected head injury with dizziness.
By rating action in November 1996, the RO granted an
increased rating to 50 percent for organic brain disease,
secondary to head trauma with headaches and dizziness
(previously described as headaches and dizziness), effective
from November 19, 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his left shoulder and arm, left
elbow, left ear, chest and back disabilities were all related
to a head injury in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting sufficient evidence to justify a
belief by a fair and impartial individual that he has
presented a well-grounded claim of service connection for
left shoulder, left arm, left elbow, left ear, chest or a
back disability.
(The issues of service connection for a neck disability,
tinnitus, an increased rating for organic brain disease,
secondary to head trauma with headaches and dizziness, and a
total disability rating for compensation purposes based on
individual unemployability are the subject of the REMAND
portion of this document.)
FINDING OF FACT
No competent evidence has been submitted to show that any
currently present left shoulder, left arm, left elbow, left
ear, chest or back disability is due to disease or injury in
service.
CONCLUSION OF LAW
The veteran has not submitted well-grounded claims of service
connection for a disability of the left shoulder, left arm,
left elbow, left ear, chest or back. 38 U.S.C.A. § 5107
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Background
The veteran’s enlistment examination into the Naval Reserves
in August 1965, indicated that he had scars on both ear
drums, but that they were not considered disabling. Other
than having had his tonsils removed when he was a child, the
remainder of the examination showed no other abnormalities.
On a Report of Medical History for an annual (Naval reserve)
examination in August 1966, the veteran reported a history of
ear, nose or throat trouble and running ears. On
examination, there was a ¾ inch scar on the on the upper left
arm near the elbow. No other pertinent abnormalities were
noted.
An examination for entrance into active service in October
1966 revealed a “UA” scar on the upper left arm and another
¾ inch scar on the upper left arm near the elbow. No other
pertinent abnormalities were noted.
On an Annual examination in September 1967, there was a one
inch scar on the upper left forearm, a three inch scar on the
right side of the chest, and one inch “PS” on the “RLROW.”
No other pertinent abnormalities were noted.
The veteran was admitted to a naval hospital from the
emergency room on July 14, 1967. The veteran reported that
he had been drinking and was intoxicated when he fell or was
assaulted, but could not recall any of the details about his
injury. The veteran was able to walk into the emergency room
without assistance, though his gait was somewhat unsteady.
There was a strong odor of alcohol on his breath, and he
complained of a severe headache and muscular pain in the
shoulders. On initial examination, the veteran had
ecchymosis involving the left eye, some slight bleeding from
his nose, and was somewhat confused. The remainder of the
examination was normal, and a neurological examination was
entirely negative. The veteran did not recall being brought
to the hospital, but was admitted because it was thought that
he may have had a cerebral concussion. The veteran was
reevaluated by the surgical resident who concluded that the
veteran had been involved in a fight and had an episode of
loss of consciousness. Routine laboratory studies were
within normal limits, and x-ray studies of his chest and
skull were normal. The following day, the veteran complained
of some discomfort in his jaw and was found to have fractured
a tooth. He was seen by the Dental Department for repair of
the tooth, and a facial fracture was ruled out. On July 17,
the diagnosis was established as concussion of the brain.
The veteran was discharged to duty, “fit for same” on July
19, 1967. A subsequent chest x-ray in August 1967 revealed
no evidence of active disease.
On a Report of Medical History for an annual examination in
September 1967, the veteran denied any frequent ear trouble,
pain or pressure in his chest, palpitation or pounding heart,
bone, joint, or other deformity or painful or “trick’
shoulder. On examination, the veteran’s ears, ear drums,
chest, upper extremities, spine and neurological system were
all normal. Also, a chest x-ray study was negative.
In November 1967 (apparently while on leave), the veteran was
seen at a VA outpatient clinic for complaints of mid chest
pain with pain in the left shoulder. The veteran reported a
history of symptoms for 5-6 years, and stated that it began
when he was a child and was hit in the chest while playing
with another child. The veteran reported that his symptoms
had worsened lately, and that he was experiencing them every
night. A chest x-ray reportedly taken a month earlier in
Oklahoma was negative. On examination, the examiner noted
catching, irregular breath sounds in the left lung with
questionable hyperresonance. The veteran’s heart was normal
and there was no chest wall tenderness. X-ray studies of the
left hemithorax and chest were negative. Likewise, an EKG
was negative. The impression was Tietze’s syndrome. The
veteran was prescribed Darvon Compound and Robaxin, and was
told to return in one week.
When seen six days later, the veteran reported pain in the
left chest and dizziness. On examination, his blood pressure
was 134/68, and no pertinent abnormalities were found. The
veteran was told to return the following day if his symptoms
persisted.
The service medical records indicate that in February 1968,
the veteran was found to be physically qualified for transfer
and no defects were noted.
In April 1968, the veteran was seen on sick call for
complaints of mid chest and upper arm pain. He was noted to
have a long history of these symptoms and was referred for
further evaluation.
A treatment record dated in June 1968 indicated that an
examination showed a normal elbow and normal chest x-ray. An
EKG the same month was also normal.
The veteran was seen in July 1968 complaining that his right
ear hurt. On examination, the veteran had bilateral ear
plugs. The impression was bilateral otitis externa. The
veteran was seen again in September 1968 for an ear ache.
The impression was left external ear infection.
Also in July 1968, the veteran complained that his left elbow
hurt. No specific abnormalities were noted, and the veteran
was given a whirlpool treatment and ace wrap.
The service medical records indicate that the veteran was
examined for an extension of service in September 1968, and
had another examination for separation from service in
October 1968. The findings on the two examinations were
essentially the same. The pertinent findings included a 1 by
½ inch scar on the posterior aspect of the upper left arm,
superior to the elbow, and a scar on the upper left arm.
Examination of the veteran’s upper extremities, neck, chest,
back, ears and ear drums were all normal. A chest x-ray
study was also negative.
VA outpatient records in October 1985 indicate that the
veteran was seen for evaluation of a persistent “feeling of
being tired,” pain and dizziness. The veteran also reported
neck discomfort and intermittent episodes of left arm pain,
but could not relate it to any precipitating cause. The
veteran stated that he noticed ringing in his ears at bedtime
or when lying down.
Outpatient records in November 1985 indicate that the veteran
was seen for vague complaints of pain in the left side of his
chest. On examination, his chest was clear, and a chest x-
ray study was essentially negative. The diagnosis was
indicated as a normal exam.
The veteran was seen by VA in January and February 1986 for
complaints of neck and shoulder pain, sometimes extending
down his back. X-ray studies of the cervical and thoracic
spine were normal. (The radiological report indicated that
the lower most cervical and upper thoracic regions were not
visualized in the lateral projections.) The record indicates
that the veteran requested and was prescribed muscle
relaxers.
VA outpatient records in August 1989 show that the veteran
was seen for complaints of pain from the left shoulder to the
elbow for the past 4 months. The veteran indicated that he
had trouble lifting his arm, but denied any recent or past
injury. An x-ray of the left shoulder revealed no acute bony
abnormality. The impression was that of tendonitis.
Copies of treatment records from a chiropractor, M. Mitkoff,
were received in December 1993 showing treatment in 1991 and
1992, primarily for neck and left shoulder pain. The veteran
reported that he had injured his head, bruised his ribs and
cracked a tooth while in service, but did not know how the
injuries occurred. He also reported occasional pain in the
left arm and shoulder, and indicated that he had injured his
left elbow playing football. The examiner noted that the
veteran reported having been in a car accident.
Copies of medical records from a private physician, J. M.
Insel M.D., were received which showed treatment for numerous
problems from 1977 to 1993. However, most of the records
were handwritten and illegible. It appears that at least
some of the records show treatment for ear problems beginning
in the 1980’s.
The evidence of record indicates that the veteran was seen on
numerous occasions since 1991 for multiple complaints
involving his left shoulder, arm, and elbow, chest, back, and
left ear, including being examined by VA in July 1994 and
March 1995. VA audiological examination in July 1994 showed
the veteran’s external canal, tympanum, and auricles were
normal, and that the tympanic membrane was intact. There was
no tenderness of the mastoid, no infectious disease of the
middle or inner ear, and no evidence of active disease in the
left ear. The diagnosis was vertigo secondary to vestibular
component.
Additional records of examinations in July 1994 showed slight
muscle spasm with normal range of motion of the lumbosacral
spine. There was no subluxation or instability in the left
shoulder or elbow, and abduction, adduction, internal and
external rotation of the left shoulder was normal. There was
some slight tenderness over the lateral condyle of the left
elbow, but range of motion was normal. The diagnosis was
left shoulder and elbow pain. X-ray studies of the veteran’s
chest and left shoulder were negative.
Analysis
Regarding the veteran's claims of service connection for a
left shoulder, left arm, left elbow, left ear, chest and back
disability, the threshold question to be answered is whether
a well-grounded claim has been presented. 38 U.S.C.A. § 5107
(West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A
well-grounded claim is defined as a "plausible claim, one
which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). Section 5107 provides that the claimant's submission
of a well-grounded claim gives rise to VA's duty to assist
and to adjudicate the claim. If the veteran has not
presented a well-grounded claim, his appeal must fail and
there is no further duty to assist him in the development of
his claim.
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
"Although the claim need not be conclusive, the statute
[Section 5107] provides that [the claim] must be accompanied
by evidence" in order to be considered well grounded.
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim
of service connection, this generally means that evidence
must be presented which in some fashion links the claimed
disability to a period of military service or to an already
service-connected disability. 38 U.S.C.A. §§ 1110, 1131
(West 1991); 38 C.F.R. §§ 3.303, 3.310 (1997); Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown,
4 Vet. App. 343 (1993). Evidence submitted in support of the
claim is presumed to be true for purposes of determining
whether the claim is well grounded. King v. Brown, 5 Vet.
App. 19, 21 (1993). However, lay assertions of medical
diagnosis or causation do not constitute competent evidence
sufficient to render a claim well grounded. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski,
2 Vet. App. 492, 495 (1992).
It should also be noted that in order for consideration to be
given to a claim of service-connection, there must be a
showing that a particular injury or disease resulting in
disability was incurred in or aggravated during service.
38 U.S.C.A. § 1110 (West 1991). Where a veteran served 90
days or more during a period of war and arthritis becomes
manifest to a degree of 10 percent within 1 year from date of
termination of such service, such disease shall be presumed
to have been incurred in service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38
C.F.R. §§ 3.307, 3.309 (1997). Additionally, VA Regulations
provide:
(a) Service connection connotes many
factors but basically it means that the
facts, shown by evidence, establish that
a particular injury or disease resulting
in disability was incurred coincident
with service in the Armed Forces, or if
preexisting such service, was aggravated
therein.
(b) With chronic disease shown as such
in service (or within the presumptive
period under § 3.307) so as to permit a
finding of service connection, subsequent
manifestations of the same chronic
disease at any later date, however
remote, are service connected, unless
clearly attributable to intercurrent
causes. This rule does not mean that any
manifestation of joint pain, any
abnormality of heart action or heart
sounds, any urinary findings of casts, or
any cough, in service will permit service
connection of arthritis, disease of the
heart, nephritis, or pulmonary disease,
first shown as a clear-cut clinical
entity, at some later date. For the
showing of chronic disease in service
there is required a combination of
manifestations sufficient to identify the
disease entity, and sufficient
observation to establish chronicity at
the time, as distinguished from merely
isolated findings or a diagnosis
including the word "Chronic." When the
disease identity is established (leprosy,
tuberculosis, multiple sclerosis, etc.),
there is no requirement of evidentiary
showing of continuity. Continuity of
symptomatology is required only where the
condition noted during service (or in the
presumptive period) is not, in fact,
shown to be chronic or where the
diagnosis of chronicity may be
legitimately questioned. When the fact
of chronicity in service is not
adequately supported, then a showing of
continuity after discharge is required to
support the claim.
38 C.F.R. § 3.303
Although the veteran now argues that he has a left shoulder,
left arm, left elbow, left ear, chest and back disabilities
which are related to injuries in service, he has presented no
medical evidence to support this lay assertion. Furthermore,
he, as a layperson, is not competent to provide an opinion
regarding the question of medical causation. See
Grottveit v. Brown and Espiritu v. Derwinski. Therefore, in
the absence of any competent medical evidence showing a nexus
between any chronic disability now present and military
service, there is no basis to grant service connection for
the claimed disorders. See Caluza.
ORDER
To the extent that well-grounded claims of service-connection
for a left shoulder, left arm, left elbow, left ear, chest or
back disabilities have not been presented, the appeal is
denied.
REMAND
The veteran was granted service connection for headaches and
dizziness by rating action in August 1994, and was initially
assigned a noncompensable evaluation which was later
increased to 10 percent, effective from the date of his
original claim. Subsequently, the veteran sought service
connection for a nervous disorder secondary to the service-
connected disability. A fee basis psychiatric examination
was conducted in October 1996. Therein, the examiner
concluded that the veteran presented as having an organic
personality disorder secondary to the brain trauma. Based on
this opinion, the RO recognized the service connected
disability as encompassing a psychiatric component and
increased the rating to 50 percent under diagnostic code
9304. The disability was classified as organic brain
disease, secondary to head trauma with headaches and
dizziness.
The mental status findings of record are not sufficiently
detailed to evaluate the veteran’s service-connected
disability. This is especially so considering the revised
regulations for rating psychiatric disabilities which became
effective November 7, 1996. The Statement of the Case issued
in November 1996 did not include the revised criteria. As
the veteran filed his claim of service connection for a
nervous disorder prior to the effective date of the revised
regulations, either the new or the old criteria should be
applied, whichever is most favorable to the veteran. See
Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, it
should be kept in mind that any increased rating based on the
revised regulations may not be made effective prior to the
effective date of such regulation. See DeSousa v. Gober, No.
96-001 (U.S. Vet. App. October 31, 1995).
For the benefit of the psychiatric examiner, the revised
regulations pertaining to the evaluation of mental
disabilities are provided, in pertinent part, as follows:
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own
name.....................................
..... 100
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective
relationships............................
.................................... 70
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships............................
................... 50
Occupational and social impairment with
occasional decrease in work efficiency
and intermittent periods of inability to
perform occupational tasks (although
generally functioning satisfactorily,
with routine behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment,
mild memory loss (such as forgetting
names, directions, recent
events)................ 30
Occupational and social impairment due to
mild or transient symptoms which decrease
work efficiency and ability to perform
occupational tasks only during periods of
significant stress, or; symptoms
controlled by continuous
medication...............................
................. 10
A mental condition has been formally
diagnosed, but symptoms are not severe
enough either to interfere with
occupational and social functioning or to
require continuous
medication...............................
................... 0
38 C.F.R. § 4.130 (Effective November 7, 1996).
Regarding the veteran’s claim of service connection for
tinnitus, the Board notes that the veteran was examined by a
VA audiologist and a general practitioner in March 1995. On
March 29, 1995, the general practitioner concluded that the
veteran’s tinnitus was “probably related to his work in the
military, which involved being around engines and high level
noises in confined spaces.” The veteran was examined by an
audiologist on March 30, 1995. The examiner indicated that
some of the audiological findings were unreliable and
concluded that it was not possible to tell from the
audiological data whether the veteran’s tinnitus was the
result of a head injury. Inasmuch as the current evidence of
record does not indicate whether the veteran was actually
exposed to acoustic trauma during service (his DD 214 does
not specify his military specialty), the Board finds that
further evaluation should be undertaken in order to clarify
the nature of the veteran’s military duties and to determine
the etiology of his tinnitus.
In addition, the veteran indicated in his notice of
disagreement received in August 1994, that he had applied for
Social Security Disability benefits. The evidentiary record
does not contain any information concerning the claim for
such benefits. Therefore, an attempt should be made to
obtain any available records.
By letter dated in February 1994, a chiropractor reported the
veteran’s medical history concerning his neck complaints and
concluded that it could not be determined which of the
veteran’s three traumas (football injury, service injury or
automobile accident) triggered his current problems but,
based on the veteran’s case history, he opined that “it was
more than likely that each trauma contributed to his
problems.” In view of this opinion, a VA examination is
needed to attempt to confirm the etiology of any neck
disability and to confirm that a chronic neck disability
exists.
When, during the course of review the Board determines that
further evidence or clarification of the evidence or
correction of a procedural defect is essential for a proper
appellate decision, the Board shall remand the case to the
agency of original jurisdiction, specifying the action to be
undertaken. 38 C.F.R. § 19.9 (1997). Where the record
before the Board is inadequate to render a fully informed
decision, a remand to the RO is required in order to fulfill
the statutory duty to assist. Ascherl v. Brown, 4 Vet. App.
371, 377 (1993).
Therefore, it is the decision of the Board that further
development is necessary prior to appellate review.
Accordingly, the case is REMANDED to the RO for the following
action:
1. The RO should take appropriate steps
to contact the veteran and obtain the
names and addresses of all medical care
providers who treated him for his
tinnitus, neck problems and service-
connected organic brain syndrome with
headaches and dizziness since 1996. He
should also provide the VA with the names
and addresses of any medical providers
who treated his neck complaints prior to
service and in connection with his
automobile accident in the 1980’s. Based
on his response, the RO should attempt to
obtain copies of all such records from
the identified treatment sources, as well
as any VA clinical records not already of
record, and associate them with the
claims folder.
The RO should also obtain the veteran’s
personnel records to determine what his
military duties were during service.
2. The RO should obtain from the Social
Security Administration any
administrative decision prepared and
underlying medical records prepared in
connection with the veteran’s claim for
Social Security disability benefits.
3. The veteran should be afforded a VA
ear examination to determine the etiology
of his tinnitus. The claims folder and a
copy of this REMAND must be made
available to the examiner for review in
connection with the examination. The
examiner should review the entire claims
folder prior to the examination and all
appropriate tests should be conducted.
The examiner should provide an opinion as
to whether it is at least as likely as
not that the veteran’s tinnitus was
caused by a head injury or, if
appropriate, acoustic trauma in service.
The examiner should describe all findings
in detail and provide a complete
rationale for all opinions offered. If
the examiner is unable to make any
determination as to the etiology, she/he
should so state and indicate the reasons.
If the examiner disagrees with any
contrary opinion of record, the reasons
should be noted. The report should be
typed or otherwise recorded in a legible
manner.
4. The veteran should be afforded a VA
examination by a psychiatrist to
determine the severity of his service
connected brain disability and its effect
on his employability. The examiner
should also determine the effects of the
service connected disability, standing
alone, upon the veteran’s ability to be
gainfully employed. If the examiner is
unable to make any determination, he/she
should so state and indicate the reasons
therefor. The examination must address
all criteria listed in the revised
diagnostic code as cited in this
decision, but a rating should not be
assigned. Any complaints or findings
referable to alcoholism must be
dissociated, if feasible, from the
service connected disability. All
appropriate testing should be ordered in
connection with this examination in order
to evaluate the veteran’s service
connected disability. The examiner
should describe all findings in detail
and provide a complete rationale for all
opinions offered. The claims folder and
a copy of this REMAND must be made
available to the examiner for review in
connection with the examination. The
psychiatrist should include a GAF score
and an analysis of its meaning. The
findings should be typed or otherwise
recorded in a legible manner for review
purposes.
5. The veteran should also be afforded a
VA orthopedic examination to determine
the nature and, if feasible, etiology of
his neck complaints. The claims folder
and a copy of this REMAND must be made
available to the examiner for review in
connection with the examination. The
examiner should review the entire claims
folder prior to the examination and all
appropriate tests should be conducted.
If a neck disability is identified, the
examiner should render an opinion as to
whether it is at least as likely as not
that any identified neck disability was
related to service. The examiner should
provide a complete rationale for all
opinions offered. If the examiner is
unable to make a determination as to the
etiology, she/he should so state and
indicate the reasons. Moreover, if the
examiner disagrees with any opinion of
record contrary to his opinion, he/she
should state the reasons therefore. The
report should be typed or otherwise
recorded in a legible manner.
6. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
development requested herein above was
conducted and completed in full. In
particular, the RO should determine if
all medical findings necessary to rate
the veteran’s service-connected
disability have been provided by the
examiner. If any development is
incomplete, appropriate corrective action
is to be implemented.
7. After the requested development has
been completed, the RO should again
review the veteran’s claim. If the
benefit sought on appeal remains denied,
the veteran and his representative should
be furnished a Supplemental Statement of
the Case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. The Board intimates
no opinion, either legal or factual, as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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